RAF Officer Court Martial: Refusal To Return To Illegal Iraq War

Excerpted from:
timesonline.co.uk

timesonline.co.uk
David Leppard
The Sunday Times
Oct. 16, 2005

Flight-Lieutenant Malcolm Kendall-Smith is to be court-martialled for “refusing to obey a lawful command” after he told his commanding officer that he would not go to Basra.

Kendall-Smith, 37, unit medical officer for RAF Kinloss in Morayshire, has been decorated for his role in support of military operations in Afghanistan and for two previous tours in support of the RAF in Iraq.

However, after studying the legal position, including the advice of Lord Goldsmith, the attorney-general, he decided this year that the war was unlawful and it would therefore be wrong for him to return.

A central part of Kendall-Smith’s legal case will be the manual of RAF law which states that a serving officer is justified in refusing to obey a command if it is illegal. His lawyers will also argue that his commission, granted by the Queen, requires him to act according to “the rules and discipline of war”.

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Hmm, now this could get interesting, because this may force a court ruling that establishes, in their view, whether the war in Iraq is legal or not. And he appears to have considerable evidence, according to law, that establishes the war as illegal. Otherwise I hardly doubt that he would risk his career and a court martial over it. Especially from someone that "has been decorated for his role in support of military operations in Afghanistan and for two previous tours in support of the RAF in Iraq."

And key note: He has acted on advice from the Attorney General.

I'll be watching this one, for sure.


[edit on 16-10-2005 by TrueAmerican]

Mod Edit: Added Quote Tags.

[edit on 16/10/2005 by Mirthful Me]

MM, the reason I usually don't put excerpts in quotes is to make it easier to read, as writing in quotes is pretty small. Any way to change that and make writing in quotes a bit bigger? And also because I excerpt what I feel are key paragraphs in the article, so in essence that is NOT what was quoted. They are different paragraphs from the article, and may even in some cases be out of order.

If that is required, regardless of my above reasons, then I will be happy to oblige in the future.

Sounds like the USA's Pablo Paredes case where even the military's prosecutor made the case that the Iraq invasion, plus the Afghanistan and Yugoslavia invasions, were illegal. To which the judge came to that conclusion and gave no jail time for Parades who refused orders to go to Iraq.

www.truthout.org...

The case went as far as it did simply because it became visible in the media and an attempt to punish Parades to serve as an example to others who might be thinking of legally getting out through this manner was made.

[edit on 17-10-2005 by Frith]

Yeah Frith, that was a case allright.

We have a judge establishing that the war in Iraq is illegal- a JUDGE- and yet the war continues. But of course if you talk to neos they'll tell you that it depends on who's legal system, and that the war is legal. And the other great one that in premptiveness there is self defense, and thereby justified. Right?

If they plopped down a picture and video of Saddam or Ben Laden hugging a few nuclear bombs labeled "Uncle Sam," along with the gory details, I'd have a little easier time believing them. But as it stands now, I think the military need to go back to their books and read:

I noted that the Uniform Code of Military Justice requires that all military personnel obey lawful orders. Article 92 of the UCMJ says, "A general order or regulation is lawful unless it is contrary to the Constitution, the laws of the United States...." Both the Nuremberg Principles and the Army Field Manual create a duty to disobey unlawful orders. Article 509 of Field Manual 27-10, codifying another Nuremberg Principle, specifies that "following superior orders" is not a defense to the commission of war crimes, unless the accused "did not know and could not reasonably have been expected to know that the act ordered was unlawful."

I'll bet if either Kendall-Smith's or Paredes' countries were attacked, they'd both fight their hearts out to their deaths in good conscience. They are not cowards. They are pulling out because they are doing their lawful duty to obey the Uniform Code of Military Justice, Article 92. No war crimes tribunal will ever touch em.